Pantelidis v. New York City Board of Standards & Appeals

43 A.D.3d 314, 841 N.Y.S.2d 41

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 16, 2007
• Status: Published

Opinions

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J), entered January 17, 2006, which, after a hearing, granted the petition brought pursuant to CPLR article 78 to annul the resolution of respondent Board of Standards and Appeals (BSA), dated January 14, 2003, denying petitioner an area variance, and directed BSA to issue the variance, affirmed, without costs.

The issue that divides this panel is whether, in this article 78 proceeding, we are required to remand the matter for further consideration by BSA, notwithstanding that the agency has already had an opportunity to receive all relevant evidence, and to consider all relevant factors, bearing on petitioner’s application for an area variance for a glass-enclosed staircase at the rear of his townhouse. In a prior appeal in this very case, this Court has already determined that, under these circumstances, no such remand is necessary, and, in so ruling, we specifically rejected BSA’s argument to the contrary (13 AD3d 242, 243 [2004], lv dismissed 4 NY3d 809 [2005]). The determination of this issue by our own Court now binds us as law of the case on a later appeal in the same proceeding. If BSA and intervenorsrespondents believe that our earlier ruling was erroneous, they may seek review by the Court of Appeals. This Court should not change its ruling on an issue of law in the same case simply because a later appeal has come before a different panel.

Pursuant to our prior decision, Supreme Court conducted a hearing on whether petitioner, in erecting the glass-enclosed staircase, had relied in good faith on a construction permit invalidated only after the structure’s completion. The evidence presented at the hearing permitted Supreme Court, sitting as trier of fact, fairly to find (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]) that petitioner had erected the disputed structure in good-faith reliance on the subsequently invalidated permit. In view of that finding and Supreme Court’s additional well-supported findings that the remaining relevant criteria under New York City Zoning Resolution § 72-21 had been satisfied, the court properly concluded that petitioner was entitled to a variance authorizing the construction (see Matter of Jayne Estates v Raynor, 22 NY2d 417 [1968]).

Again, contrary to the dissent’s contention, Supreme Court was not required to remand the matter to BSA after the hearing, notwithstanding that BSA, in denying the variance application, had not discussed two of the five criteria under Zoning Resolution § 72-21 (even though evidence on all five criteria had been presented to it) and had refused to consider the issue of good-faith reliance (see 13 AD3d at 243). For the reasons set forth in Supreme Court’s decision, on this record, and in light of the determination that the structure was built in good-faith reliance on a duly issued permit, it would be arbitrary and capricious to deny the variance sought by petitioner (see Matter of Police Benevolent Assn. of N.Y. State Troopers v Vacco, 253 AD2d 920, 921 [1998], lv denied 92 NY2d 818 [1998] [declining to remand matter to agency for further proceedings, notwithstanding agency’s failure to make findings on certain factual issues, since “the record is complete enough to enable the Court to render a final judgment on the merits,” and “the agency is merely seeking a second chance to reach a different determination on the merits”]). In this regard, we note that the existing record is sufficiently developed to permit informed judicial review of all issues raised by the variance application; that BSA has already had an opportunity to consider all such issues; and that this matter has been the subject of litigation between petitioner and intervenors-respondents for more than seven years.

We also reiterate that our prior decision in this case (13 AD3d 242 [2004], supra)—which, again, is now binding on us as law of the case—indicates that remand to BSA for what would be the agency’s third hearing on this matter is unwarranted. After all, on the prior appeal, we specifically rejected BSA’s argument that the issue of good-faith reliance should be remanded to the agency for its determination (id. at 243). The dissent, while dismissing as “insupportable” our reading of the decision on the prior appeal, fails to come to grips with the relevant portion of that decision: “Contrary to BSA’s contention, the court was not required to remand the good-faith issue for its determination” (id. at 243 [emphasis added]). As this statement shows, our prior decision resolved precisely the same point now argued by BSA for a second time, namely, whether, upon annulling an administrative determination that has not considered all relevant factors, a court is invariably required to remand to the agency for further consideration, or, under appropriate circumstances, may determine such matters itself. Indeed, the case for a remand in the prior appeal was, if anything, stronger than the case for a remand here, since the record was then not sufficiently developed for resolution of the issue of good-faith reliance. Thus, the dissent’s reasoning leads to the conclusion that our prior decision should have modified to remand the matter to BSA for a hearing on the good-faith issue, rather than affirm Supreme Court’s determination to conduct such a hearing itself, which is what we did. At present, there is no need to remand for further administrative action, since the record is sufficiently developed for consideration of all five factors pertinent to the variance application in light of Supreme Court’s finding on the good-faith issue.¹

The dissent’s view—that BSA’s failure to discuss two of the five variance criteria means that we must remand for consideration of the unaddressed criteria, even though BSA already had an opportunity to consider them—suggests that BSA can protect its rulings by deciding them on a piecemeal basis, giving rise to repeated article 78 challenges and remands. This position, if taken to its logical conclusion, would leave the courts powerless to avoid repeated remands of the same matter for further administrative consideration. For example, assume that BSA determines to deny a variance application after considering only one of the five factors set forth in section 72-21. If the applicant then has that determination annulled in an article 78 proceeding, the matter must, according to the dissent, go back to BSA for another opportunity to consider the remaining four factors. Moreover, if BSA again denies the application based on consideration of only one of the four remaining factors, the court, on a successful article 78 challenge, may not consider the three factors BSA failed to consider, no matter how well-developed the record may be, but must, yet again, remand the matter to afford BSA a third opportunity to consider the three remaining factors. Thus, the logic of the dissent’s approach leads to a rule under which each variance application may involve five administrative decisions, five trial court decisions on article 78 challenges, and, potentially, five appellate decisions—even if the record was sufficiently developed for consideration of all five factors after the first administrative hearing. While this—depending on one’s perspective—may not amount to a “self-evident wrong,” it seems to us that it is clearly not a self-evident right, especially where the law of the case does not require such a result.

Beyond question, judicial deference to administrative authority and expertise is an important principle, as illustrated by the decisional law cited by the dissent. Such deference does, however, admit of some elasticity, especially where a full administrative record is in existence, the agency has had an opportunity to rule on all issues, and the matter, although within the agency’s purview, does not require resolution of highly complex technical issues. The cases cited by the dissent do not hold to the contrary. Thus, we do not believe that courts are required to give BSA (or any other government agency) the option of indefinitely prolonging administrative proceedings by repeatedly considering less than all of the factors relevant to an application.²

The dissent cites Matter of Montalbano v Silva (204 AD2d 457 [1994]) in arguing that an agency need not address all potential issues when one of those issues is dispositive. Montalbano, however, actually sustained the challenged administrative determination, and therefore does not stand for the proposition that, notwithstanding the existence of a fully developed record, a court must remand a matter to an agency that has ruled erroneously on one issue while failing to address other issues. The dissent seems to disclaim arguing for this proposition, but, if it is simply (as the dissent asserts) a “strawman” of our own making, we have difficulty seeing where the dissent’s disagreement with us lies. We do not dispute that BSA was not absolutely required to address all five variance criteria once it had determined that three of them were not satisfied, given that petitioner was required to show that all five criteria were met. The question presented by this appeal is what a court is to do when presented, as here, with a decision in which the agency has determined less than all of the issues presented to it and has resolved those issues it did address in an arbitrary and capricious manner. This question simply was not presented in Montalbano, where, to reiterate, the Court agreed with BSA’s resolution against the petitioner of the one variance criterion the agency discussed, which rendered the remaining criteria moot.

We also do not agree with the analogy the dissent attempts to draw to judicial practice. While a court will often refrain from addressing issues that are academic in light of its determination of another issue, that does not preclude a higher court reviewing that decision (at least in civil cases) from addressing the issues the lower court failed to address where the record is sufficiently developed to allow the higher court (within the limits of its jurisdiction) to do so. The dissent does not advance its position by referring to the Court of Appeals’ lack of jurisdiction to review the facts, since, in this case, both this Court and Supreme Court have jurisdiction to determine whether, on the record presented, a given result would be arbitrary or capricious (see CPLR 7803 [3]).

As to the dissent’s claim that we and Supreme Court lack the “competence and expertise” to resolve the remaining outstanding issues on the existing record, neither the dissent, BSA, nor intervenors-respondents explain how the glass-enclosed staircase here in question raises land-use issues so complex and technical as to be beyond judicial competence. While there are undoubtedly many variance cases that courts will be unable to analyze without guidance from BSA on all relevant factors, this does not appear to be such a case. The dissent may believe that a high degree of technical expertise is required to determine whether allowing a one-time variance for the rear-wall, glass-enclosed staircase at issue will alter the “essential character of the neighborhood,” but we respectfully disagree with this view.³ Further, the present record is sufficiently developed to permit resolution of the question of petitioner’s entitlement to a variance, as it is undisputed that BSA received evidence on all five variance factors at the hearing it held in this matter.⁴

The record provides no support for appellants’ contention that the hearing court was biased. We have considered appellants’ remaining arguments and find them unavailing. Concur— Friedman, J.E, Nardelli, Gonzalez and Malone, JJ.

1 . The dissent’s reliance on CPLR 7804 (h) to reconcile its approach with our prior decision is unpersuasive, since the statutory provision does not address what issues are appropriate for trial before the court in an article 78 proceeding, nor does it identify the specific circumstances that may render it appropriate for a court to conduct such a trial. The issue of good-faith reliance in this case could have been (and should have been) addressed in the first instance by BSA, but, given BSA’s refusal to do so, we held that Supreme Court correctly determined to try the issue itself.

2 . The dissenter attempts to disown the implications of his own position, stating that “the judiciary certainly would not be powerless in the event the agency” acted in the manner posited by our hypothetical. In our view, given the full record now before us and BSA’s deliberate and unjustifiable refusal even to consider the good-faith issue when it had an opportunity to do so (see 13 AD3d at 243), the present appeal presents an appropriate case for exercise of the judicial power the dissent concedes to exist.

3 . In this regard, we note that the noncompliance of the structure at issue consists in its reduction of the depth of petitioner’s backyard to 24 feet, two inches, which is approximately six feet less than the minimum depth of 30 feet required by the zoning ordinance.

4 . We are not persuaded by the weakly supported suggestion in BSA’s opening appellate brief that “it might be appropriate for [the agency] to reexamine petitioner’s evidence of expenditures or require additional evidence on this issue.” BSA does not suggest any basis to believe that petitioner’s alleged expenditure of $204,401 to build the structure at issue deviates materially from the reasonable cost of such construction.